NY v. DirectRevenue Hearing Transcript

I previously blogged on the New York v. DirectRevenue case and the amicus brief that David Post, Scott Christie and I filed. Last week, there was a hearing on DirectRevenue’s motion to dismiss. The transcript. Note that all transcript references to “Mr. Christie” actually should be to Justin Brookman of the NYAG’s office.

One exchange that caught my attention: the judge got feisty with Brookman over the NYAG’s continued misuse of the term “spyware” to describe software that lacks a report-back feature (see the Merriam-Webster definition of spyware). On page 17, the judge says to Brookman:

Wait a minute. You called it spyware. And then when your adversary says wait a minute, none of this is alleged in their papers. Forget spyware. It’s not spyware unless you tell me different.

I’ve complained before about the problems created by the lack of standard nomenclature for adware and spyware. This sloppy nomenclature can benefit plaintiffs to the extent they can use the term “spyware” as a scary smear tactic. But as the judge’s retort indicates, it can also backfire when judges realize that the term is being used to misportray the facts.

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The transcript seems a bit muddled as to what Direct Revenue actually does (and did). Perhaps that’s no surprise — it seems this wasn’t an evidentiary hearing. But let there be no doubt of the following:

1) Direct Revenue sometimes arrived on users’ PCs with no consent whatsoever. I and others have detailed and repeated video and packet log proof.

2) Direct Revenue systematically tracks many of the specific web page URLs users visit, and sends this information to its server.

3) In the past, Direct Revenue collected users’ FORM GET and POST data, including name, email address, street address, and zip code, and that Direct Revenue previously sold this data to third parties Hitwise and Compete. (See http://www.benedelman.org/spyware/nyag-dr/ , exhibit 24.)

Tracking users’ web browsing, names, and addresses — all without permission. To me, that’s the very essence of “spying” — and the term “spyware” seems entirely appropriate to describe those facts.

http://www.ericgoldman.org Eric Goldman

Ben, fair enough, but see the transcript, page 18, lines 13-14, where Brookman appears to concede that he’s not alleging any of the points you are making (except maybe the first part of your 2nd point). Eric.

Within the transcript: Page 17, line 24-25 “on your computer without you knowing about it.”

Pae 18: “[Users] [n]ot knowing about it [Direct Revenue’s presence and effects] in the first place, up front, conspicuously.”

In any event, the NYAG’s complaint — rather than an imperfect transcript of remarks under the pressure of open court — is probably the best reference as to what the NYAG intends to allege. And the complaint could hardly be more clear. Recall http://www.oag.state.ny.us/press/2006/apr/Direct%20Revenue%20Verified%20Petition.pdf . Paragraph 2: Direct Revenue “has rarely obtained consumers’ consent to perform these installations, or given consumers anything approaching reasonable or conspicuous notice.” Then see paragraphs 15 and onwards as to specific installations without consent or without disclosures of the requisite prominence.

So I don’t think the NYAG concedes that installations were consensual. Far from it: The transcript and complaint both claim exactly the contrary.